US Dominion, Inc. v. Fox News Network, LLC ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
US DOMINION, INC., DOMINION )
VOTING SYSTEMS, INC., and )
DOMINION VOTING SYSTEMS )
CORPORATION, ) C.A. No.: N21C-03-257 EMD
)
Plaintiffs, )
)
v. )
)
FOX NEWS NETWORK, LLC, )
)
Defendant. )
)
)
US DOMINION, INC., DOMINION )
VOTING SYSTEMS, INC., and )
DOMINION VOTING SYSTEMS )
CORPORATION, )
) C.A. No. N21C-11-082 EMD
Plaintiffs, )
)
v. )
)
FOX CORPORATION and FOX )
BROADCASTING COMPANY, LLC, )
)
Defendants. )
MEMORANDUM OPINION ON APPLICABILITY
OF NEW YORK’S ANTI-SLAPP LAW
DAVIS, J.
I. INTRODUCTION
On August 30, 2022, the Court entered an Order Setting Briefing Schedule on Issues
Raised in December 16, 2021 Opinion. In the Opinion, the Court identified two issues that
needed additional briefing: (i) “whether New York’s anti-SLAPP applies to this proceeding,”
and (ii) “whether Dominion qualifies as a ‘public’ or ‘private’ figure.”1
Since the filing of Dominion’s complaints, in their answers, Defendants and Counter-
Plaintiffs Fox News Network, LLC (“FNN”) and Fox Corporation (“Fox Corporation”)
(collectively, “Fox”) each raised a counterclaim alleging that Plaintiffs and Counter-Defendants
US Dominion Inc., Dominion Voting Systems, Inc. and Dominion Voting Systems Corporation
(collectively, “Dominion”) violated New York anti-SLAPP Law.2 Specifically, FNN and Fox
Corporation included counterclaims with a single issue: that Dominion violated New York’s
anti-SLAPP law because Dominion commenced and continued these lawsuits without a
substantial basis in law and fact to infringe upon FNN’s free speech and free press rights.3 Fox
seeks a judgment for all costs, including attorney’s fees.4 Dominion denies Fox’s allegations.5
There is a disagreement as to whether New York anti-SLAPP law applies to this lawsuit.
FNN and Dominion have submitted briefing on the issue. Fox Corporation has not submitted a
brief; however, the Court has consolidated C.A. No. N21C-03-257 EMD and C.A. No. N21C-11-
082 EMD (the “Consolidated Cases”) and both FNN and Fox Corporation raise the same
counterclaim against Dominion. The Court will apply the rulings in this memorandum opinion
in the Consolidated Cases.
1
See US Dominion, Inc. v. Fox News Network, LLC, 2021 WL 5984265, at *29 (Del. Super. Dec. 16,
2021), and appeal refused, 270 A.3d 273 (Del. 2022) (“Dominion I”). The Court’s motion to dismiss decision in
C.A. No. N21C-11-082 EMD can be found at US Dominion, Inc. v. Fox Corporation, 2022 WL 2229781 (Del.
Super. June 21, 2022) (“Dominion II”)
2
See Def.’s Answer to Pls.’ Compl. and Countercl. (“FNN Countercl.”), Jan. 24, 2022 (FNN D.I. 181), Def.’s
Answer, Defenses and Countercl. (“FC Countercl.”), July 6, 2022 (FC D.I. 43).
3
See FNN Countercl. at 63-65 ¶¶ 1-14; FC Countercl. at 85 ¶ 10.
4
FNN Countercl. at 65 ¶ 13; FC Countercl. at 85 ¶ 10 (FC also seeks compensatory and punitive damages).
5
See Pls.’ and Counter-Defendants US Dominion, Inc., Dominion Voting Systems, Inc., and Dominion Voting
Systems Corp.’s Answer and Defenses to Counter-Plaintiff and Defendant Fox New Network, LLC’s Counterclaim
(“FNN Countercl. Answer”), Feb. 14, 2022 (D.I. 199); Pls.’ and Counter-Defendants US Dominion, Inc., Dominion
Voting Systems, Inc., and Dominion Voting Systems Corp.’s Answer and Defenses to Counter-Plaintiff and
Defendant Fox Corporation’s Counterclaim (“FC Countercl. Answer”), July 26, 2022 (FC D.I. 56).
2
For the reasons set forth below, the Court will: (i) apply N.Y. C.P.L.R. § 76-a (“Section
76-a”) in the Consolidated Cases at trial; (ii) use the legal standard of Civil Rule 56 and not N.Y.
C.P.L.R. 3212(h) (“Rule 3212”) when deciding summary judgment; and (iii) defer any ultimate
ruling on N.Y. C.P.L.R. § 70-a (“Section 70-a”).
II. RELEVANT FACTS
A. THE PARTIES
Counter-Defendant US Dominion Inc. is a for-profit Delaware corporation with its
principal place of business in Denver, Colorado.6 Counter-Defendant Dominion Voting
Systems, Inc. is a for-profit Delaware Corporation with its principal place of business in Denver,
Colorado.7 It also maintains an office in New York.8 It is a wholly owned subsidiary of US
Dominion, Inc.9 Counter-Defendant Dominion Voting Systems Corporation is a for-profit
Ontario, Canada corporation with its principal place of business in Toronto, Ontario.10 It is a
wholly owned subsidiary of US Dominion, Inc.11
Defendant and Counter-Plaintiff FNN operates the Fox News Channel and other related
media networks.12 FNN is a limited liability company incorporated in Delaware with its
principal place of business in New York.13 Defendant and Counter-Plaintiff Fox Corporation is a
limited liability company incorporated in Delaware with its principal place of business in New
York.14
6
Compl. at 4 ¶ 8, Mar. 26, 2021 (FNN D.I. 1).
7
Id. at 4 ¶ 9.
8
Id.9
Id.10
Id. at 4 ¶ 10.
11
Id. at 4-5 ¶ 10.
12
FNN Countercl. at 62 ¶ 1.
13
Id.14
FNN Countercl. at 85 ¶ 11.
3
B. FACTUAL BACKGROUND
The factual allegations and background have been thoroughly discussed in Dominion I
and Dominion II. Accordingly, this decision will not specifically go through the allegations and
incorporates the “Background” sections from those decisions.
C. PROCEDURAL POSTURE
Dominion filed its Complaint against FNN on March 26, 2021, alleging defamation per
se.15 On May 18, 2021, FNN filed a Motion to Dismiss for Failure to State a Claim.16 The Court
denied FNN’s motion to dismiss on December 16, 2021 in Dominion I. In Dominion I, the Court
applied Delaware procedural law, i.e., the legal standard applicable to Civil Rule 12(b), in its
review of the sufficiency of the pleadings, and postponed the question of whether New York
anti-SLAPP law applied to the substantive issues.17
On January 24, 2022, FNN filed its Answer, which includes the Counterclaim at issue.18
The Counterclaim alleges one cause of action – that Dominion violated the New York Civil
Rights “anti-SLAPP” law.19 Specifically, FNN alleges that Dominion’s lawsuit is an “attempt to
punish FNN for exercising its constitutional rights in a manner Dominion does not like, to censor
and chill FNN . . . and to intimidate FNN and anyone else who might consider exercising
constitutional rights. . . .”20 FNN alleges that the action “involv[es] public petition and
participation” and that “Dominion commenced and continued its action without a substantial
basis in fact and law” because its action is “foreclosed by multiple First Amendment and state
law doctrines that protect free speech and the press.”21 On February 14, 2022, Dominion filed its
15
FNN Compl.
16
FNN Mot. to Dismiss, May 18, 2021 (FNN D.I. 45).
17
Id. at 31-36.
18
See FNN Countercl.
19
Id. at 63 ¶ 7.
20
Id. at 64 ¶ 11.
21
Id. at 63-63 ¶¶ 6-10.
4
Answer and Defenses to FNN’s Counterclaim.22 Dominion denies the allegations and asserts
eight defenses.23
On November 8, 2021, Dominion filed its Complaint against Fox Corporation.24 On
December 30, 2021, Fox Corporation filed a motion to dismiss.25 The Court denied Fox
Corporation’s motion to dismiss on June 21, 2022 in Dominion II. As in Dominion I, the Court
applied Delaware procedural law in its review of the sufficiency of Dominion’s pleading, and
postponed the question of whether New York anti-SLAPP law applied to the substantive issues.26
On July 6, 2022, Fox Corporation filed its Answer and Counterclaim.27 On July 26, 2022,
Dominion filed its Answer and Defenses to the Counterclaim, calling Fox Corporation’s
counterclaim meritless.28
On September 19, 2022, FNN filed its Brief on New York’s anti-SLAPP Law.29 On
September 28, 2022, Dominion filed its Response to Defendant’s Brief on New York’s anti-
SLAPP Law.30 On October 10, 2022, FNN filed a Reply Brief on New York anti-SLAPP Law.31
22
See FNN Countercl. Answer.
23
Id. at 4–6. Dominion asserts that (1) FNN fails to state a claim upon which relief can be granted; (2) FNN is not
entitled to costs and attorney’s fees because Dominion’s lawsuit has a substantial basis in fat and law; (3) FNN is
not entitled to damages because it cannot demonstrate Dominion’s suit was commenced or continued for the purpose
of harassing, intimidating, punishing, or otherwise offensive or inhibiting speech; (4) FNN is barred because its
statements were not protected speech; (5) FNN is barred and/or limited by its own bad faith or unclean hands; (6)
FNN is barred because its Counterclaim violates Dominion’s rights under the First and Seventh Amendment; (7)
FNN’s Counterclaim is frivolous under New York Civil Practice Law and Rules § 8303-a; and (8) FNN’s
Counterclaim is without merit and without substantial basis in fact and law within the meaning of New York Civil
Rights Law § 70-a. Id.
24
Compl., Nov. 8, 2021 (FC D.I. 1).
25
FC Mot. to Dismiss, Dec. 30, 2021 (D.I. 14).
26
Id. at 9.
27
FC Countercl..
28
FC Countercl. Answer at 9, July 26, 2022 (FC D.I. 56).
29
Def.’s Br. on New York’s anti-SLAPP Law (“Def.’s anti-SLAPP Br.”), Sep. 19, 2022 (D.I. 595). FNN filed one
exhibit, “Exhibit A,” with its brief. Exhibit A includes the New York Assembly’s amendments to the statute
broadening the scope of “public participation and petition.” Id.
30
Pls.’ Response to Def.’s Br. on New York’s anti-SLAPP Law (“Pls.’ anti-SLAPP Response”), Sep. 28, 2022 (D.I.
634).
31
Def.’s Reply Br. on New York’s anti-SLAPP Law (“Def.’s anti-SLAPP Reply”), Oct. 10, 2022 (D.I. 699).
5
On December 22, 2022, the Court entered an Order consolidating the Consolidated Cases
for trial.32
A briefing schedule for filing summary judgment motions has been set and is as follows:
(i) opening motions and briefs are due on January 17, 2023; (ii) opposition briefs are due on
February 8, 2023; and (iii) reply briefs are due on February 20, 2023.33 The Order stated that the
parties may supplement the opposition briefs with discovery obtained during January 2023 and
reply briefs may respond to any supplements based on discovery obtained during January 2023.34
The Court notes that all the parties have filed summary judgment motions.
III. PARTIES’ CONTENTIONS
A. FOX
FNN contends that multiple portions of the New York anti-SLAPP statute are substantive
or outcome determinative, and therefore must apply.35 FNN argues that the standard of care and
evidentiary burden as set forth in Section 76-a are substantive.36 FNN states that both New
York and Delaware hold that the standard of care is substantive.37 FNN then provides that New
York law considers the “clear-and-convincing” burden of proof to be substantive,38 and
“Delaware courts apply foreign law that establishes ‘a heighted burden of proof’ dictating ‘the
outcome of the trial’ because [it] ‘affect[s] the outcome of the trial rights.’”39
32
Order Consolidating for Trial C.A. No. N21-03-257 EMD and C.A. No. N21-C-11-082 EMD, Dec. 22, 2022 (D.I.
890).
33
Order Setting Briefing on Summ. J. Mots., Jan. 6, 2023 (D.I. 920).
34
Id.
35
Def.’s anti-SLAPP Br., at 1. See Order Designating New York Law and Waiving Forum Non Conveniens, Apr.
27, 2021 (D.I. 40) (applying New York substantive law).
36
Id. at 1-4.
37
Id. at 2-3.
38
Id. at 3 (citing Palin v. N.Y. Times Co., 510 F.Supp.3d 21, 26 (S.D.N.Y. 2020)).
39
Id. (quoting Meyers v. Intel Corp., 2015 WL 227824, at *4 (Del. Super. Jan. 15, 2015)).
6
FNN next argues that the cause of action set forth in Section 70-a, including the attorney
fee-shifting provision, is substantive.40 FNN maintains that Section 70-a creates a cause of
action for defamation defendants, and that cause of action is therefore a “statutory right.”41 FNN
submits that causes of action are substantive because they “create and vest legal rights.”42 FNN
also emphasizes that the attorneys’ fees provision is substantive because the U.S. Supreme Court,
federal courts, and Delaware have recognized fee-shifting as a substantive issue.43
FNN then contends that that the heightened standard for summary judgment set forth in
Rule 3212(h) is inseparably interwoven with substantive rights and therefore is potentially
outcome-determinative.44 FNN asserts that the rights to free speech and protection of public
discussion against litigation costs are “inseparably interwoven with” the standard and therefore
substantive.45 FNN argues that because the standard is heightened, it would be outcome-
determinative if Dominion cannot meet its high bar.46
B. DOMINION
Dominion concedes that Section 76-a.2 applies to Dominion’s defamation claims.47
Dominion argues, however, that Section 70-a does not apply.48 Dominion contends that
the statute is meant to apply to New York conduct, and this lawsuit was filed in Delaware;
therefore, Dominion claims there is a presumption against applying New York law
40
Id. at 1, 4–7.
41
Id. at 4 (citing Waterways at Bay Pointe Homeowners Ass’n v. Waterways Dev. Corp., 969 N.Y.S.2d 807 (N.Y.
Sup. Ct. 2013) aff’d 19 N.Y.S.3d 536 (N.Y. App. Div. 2015)).
42
Id. at 5 (citing Application of Buresch, 672 A.2d 64, 65 (Del. 1996),
43
Id. at 5-6.
44
Id. at 1, 7-10.
45
Id. at 9 (citing Godin v. Schencks, 629 F.3d 79, 89 (1st Cir. 2010) (applying a Maine anti-SLAPP procedural
standard that required a plaintiff attempting to defeat a special motion to dismiss to prove defendant’s activity was
without reasonable factual support and without an arguable basis in law because the standard was so intertwined
with the state remedy).
46
Id. at 8-9.
47
Pls.’ anti-SLAPP Response, at 1.
48
Id. at 7-9.
7
extraterritorially.49 Dominion then submits that under choice-of-law principles, Delaware law
governs Dominion’s filing of this civil action because the action was filed in Delaware and,
therefore, Delaware is the jurisdiction with the “most significant relationship.”50 Dominion
stresses that FNN has not cited, and Dominion has not found, a successful Section 70-a claim
outside of New York.51 Dominion alternatively suggests that the Court could defer its ruling
until after a resolution of Dominion’s claims if the issue is not moot.52
Dominion also argues that Rule 3212(h) is procedural and, under choice-of-law, is
inapplicable.53 Dominion emphasizes that in Dominion I, the Court rejected a similar argument
that New York’s specialized anti-SLAPP procedural standard for motions to dismiss should
apply, reasoning that the Delaware standard did not deprive substantive rights.54 Dominion
further argues that there is no substantive right to a particular summary judgment standard.55
IV. DISCUSSION
A. RELEVANT STATUTES AND RULES
Three provisions of the New York anti-SLAPP law are addressed in the briefs. Section
76-a requires plaintiffs prove actual malice by a clear and convincing evidence standard.56
Section 76-a provides:
In an action involving public petition and participation, damages may only be
recovered if the plaintiff, in addition to all other necessary elements, shall have
established by clear and convincing evidence that any communication which gives
rise to the action was made with knowledge of its falsity or with reckless disregard
49
Id. (citing Glob. Reinsurance Corp. U.S. Branch v. Equitas Ltd., 969 N.E.2d 187, 195 (N.Y. 2012).
50
Id. at 8-9. Although the parties agreed that New York had the “most significant relationship to the claims and
defenses raised by the parties” in the stipulation, Dominion reserved their rights and arguments with respect to New
York anti-SLAPP law. See Order Designating New York Law and Waiving Forum Non Conveniens.
51
Id. at 7.
52
Id. at 9-10.
53
Id. at 2.
54
Id. (citing Dominion I at *18).
55
Id. at 2–6.
56
See N.Y. C.P.L.R. § 76-a.2 (McKinney).
8
of whether it was false, where the truth or falsity of such communication is material
to the cause of action at issue.57
The next provision addressed is Section 70-a, which creates a statutory cause of action
for defendants of lawsuits who allege the underlying lawsuit was a SLAPP suit. Section 70-a.1
states:
A defendant in an action involving public petition and participation, as defined in
paragraph (a) of subdivision one of section seventy-six-a of this article, may
maintain an action, claim, cross claim, or counterclaim to recover damages,
including costs and attorney’s fees, from any person who commenced or continued
such action . . . (a) upon a demonstration . . . that the action involving public petition
and participation was commenced or continued without substantial basis in fact and
law and could not be supported by a substantial argument for the extension,
modification or reversal of existing law.58
The final provision discussed is Rule 3212(h), which establishes a heightened
standard for a party to defeat a motion for summary judgment, stating:
A motion for summary judgment, in which the moving party has demonstrated that
the action, claim, cross claim or counterclaim subject to the motion is an action
involving public petition and participation, as defined in paragraph (a) of
subdivision one of section seventy-six-a of the civil rights law, shall be granted
unless the party responding to the motion demonstrates that the action, claim, cross
claim or counterclaim has a substantial basis in fact and law or is supported by a
substantial argument for an extension, modification or reversal of existing law. The
court shall grant preference in the hearing of such motion.59
The standard of review on a motion for summary judgment under Civil Rule 56 in
Delaware is well-settled. The Court’s principal function when considering a motion for
57
Id. An action involving public petition and participation is defined as a claim based on:
(1) any communication in a place open to the public or a public forum in connection with an issue
of public interest; or (2) any other lawful conduct in furtherance of the exercise of the constitutional
right of free speech in connection with an issue of public interest, or in furtherance of the exercise
of the constitutional right of petition.
Id. at § 76-a.1.
58
N.Y. C.P.L.R. § 70-a (McKinney).
59
N.Y. C.P.L.R. 3212(h) (McKinney) (emphasis added).
9
summary judgment is to examine the record to determine whether genuine issues of material fact
exist, “but not to decide such issues.”60
Summary judgment will be granted if, after viewing the record in a light most favorable
to a nonmoving party, no genuine issues of material fact exist and the moving party is entitled to
judgment as a matter of law.61 If, however, the record reveals that material facts are in dispute,
or if the factual record has not been developed thoroughly enough to allow the Court to apply the
law to the factual record, then summary judgment will not be granted.62 The moving party bears
the initial burden of demonstrating that the undisputed facts support its claims or defenses.63 If
the motion is properly supported, then the burden shifts to the non-moving party to demonstrate
that there are material issues of fact for the resolution by the ultimate fact-finder.64
B. THE PARTIES AGREE THAT SECTION 76-a.2 APPLIES
Here, the parties agree that Section 76-a.2 applies to Dominion’s defamation claim.65 As
such, the Court will not spend time or space analyzing the applicability of Section 76-a.2. The
Court will use Section 76-a in this civil action.
C. RULE 3212(h) DOES NOT APPLY
FNN contends that Rule 3212(h), which is a heightened summary judgment standard,
applies to Dominion’s claims because the heightened standard is “inseparably interwoven with
substantive rights” and is “potentially outcome-determinative.”66 FNN argues that Dominion
60
Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del. 1992) (internal citations omitted); Oliver B. Cannon
& Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del. Super. 1973).
61
See Merrill, 606 A.2d at 99-100.
62
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); see also Cook v. City of Harrington, 1990 WL 35244, at
*3 (Del. Super. Feb. 22, 1990) (citing Ebersole, 180 A.2d at 467) (“Summary judgment will not be granted under
any circumstances when the record indicates . . . that it is desirable to inquire more thoroughly into the facts in order
to clarify the application of law to the circumstances.”).
63
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979) (citing Ebersole, 180 A.2d at 470).
64
See Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 1995).
65
Pls.’ anti-SLAPP Response, at 1.
66
Def.’s anti-SLAPP Br. at 7.
10
must prove its lawsuit has a “substantial basis in fact and law” at the summary judgment stage,
which is more than the traditional genuine dispute of material fact.67 Citing to a New York case,
FNN argues that this standard requires “strong evidence that a trier of fact could determine” that
plaintiff could prevail on the merits.68
FNN argues that the heightened burden is inseparably interwoven with the substantive
right of protecting against litigation that chills free speech and potentially outcome-
determinative.69 FNN claims New York employs this heightened standard as an act of protection
against chilling public discussion through litigation costs, and therefore the standard is “vitally
bound up with the adjudication” of the substantive right of protecting free speech.70
Dominion, on the other hand, argues that FNN failed to identify a substantive right that it
would be deprived of under the traditional summary judgment standard beyond (1) protection
against litigation that chills free speech through a particular standard of review and (2) the right
to free speech itself.71 Dominion notes that the Court previously rejected FNN’s argument that it
had a substantive right to a particular standard of review in Dominion I.72 The Court reached this
same conclusion in Dominion II.73
Dominion additionally contends that not applying Rule 3212(h) will not deprive FNN of
its constitutional right to free speech.74 Dominion points out that a case FNN relies on, Meyers v.
Intel Corp.,75 held that Colorado procedural provisions on pleading exemplary damages did not
67
Id. at 8. Compare with Super. Ct. Civ. R. 56(c).
68
Id. (quoting T.S. Hauler, Inc. v. Kaplan, 2001 WL 1359106, at *3 (N.Y. Sup. Ct. July 17, 2001)).
69
Id. at 7-9. See Godin v. Schencks, 629 F.3d 79, 89 (1st Cir. 2010) (holding that a Maine statute requiring
heightened burden of proof for anti-SLAPP suits was a supplemental and substantive rule, stating it was “so
intertwined with a state right or remedy that it functions to define the scope of the state-created right”).
70
Id. at 10 (quoting Meyers v. Intel Corp., 2015 WL 227824, at *3 (Del. Super. Jan. 15, 2015)).
71
Pls. anti-SLAPP Response, at 2.
72
Id. (citing Dominion I).
73
Dominion II at *4.
74
Pls.’ anti-SLAPP Response at 2.
75
2015 WL 227824 (Del. Super. Jan. 15, 2015).
11
apply in Delaware, and only Colorado’s heightened standard of proof as to the actual damages
claim applied.76 Dominion further contends that the cases FNN cites to are the minority side of a
federal split regarding whether anti-SLAPP laws supersede federal standards for motions to
dismiss and summary judgment.77 Dominion notes that the majority of federal courts have held
anti-SLAPP laws are procedural and thus refused to apply anti-SLAPP heightened standards in
lieu of the federal standards.78
This Court held in Dominion I and Dominion II that standards of review are traditionally
classified as procedural.79 The procedural law of the forum state governs procedure except in
cases where the “procedural rule of the foreign state is ‘so inseparably interwoven with the
substantive rights as to render a modification of the foregoing rule necessary, lest a party be
thereby deprived of his legal rights.’”80 The Court is not alone in this conclusion as a number of
courts—even ones located in New York—have arrived at this same result.81
Furthermore, the heightened standard is not inseparably interwoven with a substantive
right. As in Dominion I and Dominion II, the Court holds there is not a substantive right to a
heightened summary judgment standard, much like there is not a substantive right to a particular
pleading standard. Applying the traditional summary judgment standard will not infringe on
76
Id. at 3.
77
Id. at 4. These cases hold that a heightened burden of proof is substantive. See Godin v. Schencks, 629 F.3d 79,
89 (1st Cir. 2010); Carachini v. Peck, 355 F.Supp.3d 1052, 1060-61 (D. Kan. 2018); Adelson v. Harris, 774 F.3d
803, 809 (2d Cir. 2014); Steinmetz v. Coyle Caron, Inc., 2016 WL 4074135, at *3 (D. Mass. July 26, 2016).
78
Id. at 4–5. See La Liberte v. Reid, 966 F.3d 79, 88 (2d Cir. 2020); Klocke v. Watson, 936 F.3d 240, 245 (5th Cir.
2019); Los Lobos Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659, 673 (10th Cir. 2018); Carbone v.
Cable News Network, Inc., 910 F.3d 1345, 1356 (11th Cir. 2018); Abbas v. Foreign Policy Grp., LLC, 783 F.3d
1328, 1333 (D.C. Cir. 2015).
79
Dominion I at *17-20; Dominion II at *4.
80
Chaplake Holdings, LTD. v. Chrysler Corp., 766 A.2d 1, 5 (Del. 2001) (quoting Monsanto Co. v. Aetna Cas. and
Surety Co., 1994 WL 317557, at *4 (Del. Super. Apr. 15, 1994)).
81
See, e.g., Carroll v. Trump, 590 F.Supp. 3d 575, 583-85 (S.D.N.Y. 2022)(holding that Federal Civil Rules 12 and
56 apply instead of New York’s anti-SLAPP provisions); see also La Liberte v. Reid, 966 F.3d 79, 86-89 (2d. Cir.
2020)(in case involving California anti-SLAPP statute, “…federal courts must apply Rules 12 and 56 instead of
California’s special motion to strike.”).
12
FNN’s right to protect free speech. The Court, therefore, will use Civil Rule 56, and its legal
standard, and not Rule 3212(h) when addressing the various summary judgment motions.
D. THE COURT IS DEFERRING ON SECTION 70-a
The Court is deferring on the decision on whether to apply Section 70-a. The Court
understands that many upcoming rulings and factual presentations could make this issue moot.
First, the Court did a review of Section 70-a decisions in New York and has not seen its
application in any case where the plaintiff survived a motion to dismiss or summary judgment.
Second, the decision in La Liberte v. Reid calls into question whether Section 70-a is available
outside of New York state courts when Civil Rule 11 is available.82
V. CONCLUSION
For the foregoing reasons, the Court will: (i) apply Section 76-a; (ii) apply Civil Rule 56
and not Rule 3212(h); and (iii) defer any ruling on the applicability of Section 70-a.
Dated: January 27, 2023
Wilmington, Delaware
/s/ Eric M. Davis
Eric M. Davis, Judge
cc: File&ServeXpress
82
Reid, 966 F.3d at 88-89.; see also Nat’l Acadamy of Television Arts & Scis., Inc. v. Multimedia Sys. Design, Inc.,
551 F.Supp. 3d 408, 431-42 (S.D.N.Y. 2021).
13